The Duke of Sussex v News Group Newspapers Limited

On an application for summary judgment concerning limitation, a claimant may rely on Limitation Act 1980, section 32(1), only if there is a realistic prospect of proving that the relevant concealed facts could not, with reasonable diligence, have been discovered before the limitation date. Knowledge of one incident may establish a worthwhile claim for a pleaded category of wrongdoing, without knowledge of every individual incident. Separate newspapers or distinct forms of unlawful information gathering may require separate analysis. A late amendment requires a real, evidentially supported prospect of success and a satisfactory explanation for delay. The application succeeded for voicemail-interception claims, but claims concerning blagging and other private-investigator activity remained for trial.

The claimant brought a misuse of private information claim against the defendant in the Mobile Telephone Voicemail Interception Litigation. The claim alleged voicemail interception, blagging and the unlawful use of private investigators by the defendant’s newspapers, the News of the World and The Sun, during 1996–2011.

The defendant applied to strike out or obtain summary judgment on limitation grounds. The claimant also sought permission to amend his Reply and responses to further information to plead promissory estoppel or estoppel by convention based on an alleged secret agreement that members of the Royal Family would delay claims until the litigation ended. The central questions were whether the amendments had a real prospect of success and whether the claimant could rely on section 32(1) in respect of the different categories of alleged wrongdoing.

1. Late amendments. Permission to amend requires a case that is more than merely arguable and has a real, rather than fanciful, prospect of success. The pleading must be coherent and properly particularised and must have credible evidential support. Where an amendment is late, the court must also consider disruption, prejudice, the explanation for delay and the effect on the trial timetable. The proposed estoppel case was unsupported by sufficiently cogent evidence, inconsistent with the claimant’s pleaded case and earlier evidence, and inadequately explained. Permission to amend the Reply and RRFI was refused.
2. Section 32(1). The applicable test was whether, before the applicable date, the claimant knew, or could with reasonable diligence have discovered, facts that would have led a reasonable person in his position to conclude that there was a worthwhile claim. It was unnecessary to know every concealed fact, possess evidence sufficient to prove the claim, or be able to plead every detail.
3. The pleaded claim contained distinct categories of wrongdoing involving two newspapers. Knowledge of wrongdoing at one newspaper did not automatically establish knowledge of wrongdoing at the other. However, knowledge of voicemail interception by one department of the News of the World was sufficient knowledge of voicemail interception at that newspaper generally.
4. The claimant knew by about 2012 that he had been the victim of voicemail interception by the News of the World. That knowledge put him on notice to investigate further. With reasonable diligence he could have discovered a worthwhile voicemail-interception claim concerning both newspapers. Those claims, and wrongs accessory to voicemail interception, were therefore time-barred.
5. Knowledge of voicemail interception did not necessarily establish knowledge of, or notice of, separate forms of unlawful information gathering such as blagging or the use of private investigators. Whether reasonable investigation would have revealed such claims was fact-sensitive and could not safely be resolved summarily.
6. Summary judgment was granted only in respect of the voicemail-interception claims and accessory wrongs. The remaining claims were to proceed to trial.